An Eclectic Journal of Opinion, History, Poetry and General Bloviating

Thursday, May 17, 2012

The Day the Dam Broke—Thurgood Marshall Wins Brown v. The Board of Education

NAACP lawyers celebrate outside of the Supreme Court after winning the Brown v. Board of Education and related cases in 1954. Left to right, George G.C. Hayes, lead attorney Thurgood Marshall, and James M. Nabrit.

Note: Adapted
from a post this date in 2010.

On May 17, 1954 a unanimous
decision by the United States Supreme Court over
turned legal precedent and established custom to rule in the case of Brownv. Board of Education of Topekathat “separate educational facilities are inherently unequal.” The ruling sent shock waves across the nation
and it took more than a decade of turmoil and violence before this precedent
was enforced across the land.

Previous to
this ruling school segregation flourished not only in the Deep South but across much of the rest of the nation under the protection of the
1896 court decision in the case of Plessy v. Fergusonwhich ruled that “separate but equal” public accommodations were
legal.

The Justices based the Brown decision on the post Civil War
Fourteenth Amendment to the Constitution which called for “equal protection
under the law.”

Filed in 1951 by 13 parents, the suit was a result of segregation in the
Topeka, Kansas school system under a 1873 state law that allowed—but did not
compel—separation by race. At the
instigation of the local chapter of the National Association for the
Advancement of Colored People (NAACP) the parents attempted to register their
children a neighborhood schools reserved for whites. The registrations were, of course,
rejected.

The lead plaintiff was Oliver O. Brown, a welder with the Santa
Fe Railroad and the associate pastor of a local church. The Federal District Court upheld the
law citing the Plessy case. A three
judge Appeals Court acknowledged that segregated facilities could be
harmful to the interests of Black student, but said it was powerless to act
because the Topeka schools were equal in terms of quality of facilities,
transportation, curriculum, and quality of the staff.

At the Supreme Court level, the case was combined with four other NAACP
test cases from Delaware, North Carolina, Virginia, and the District
of Columbia. In the Delaware case a
lower court had supported the plaintiffs on the grounds that the segregated
schools were manifestly unequal with Black schools housed in substandard
building with restricted budgets that impacted education quality.

Arguing for the NAACP was Thurgood Marshal. Defending the Board of Education,
somewhat reluctantly—and some claim less than diligently—was Kansas AssistantAttorney General Paul Wilson.

According to notes, the Justices were split as the case moved
forward. Four members, William O.
Douglas, Hugo Black, Harold Burton, and Sherman Minton were described as “predisposed”
to overturn segregation. Fred Vinton was
leery to act in the absence of action by Congress to outlaw
segregation. Stanley Reed cited States’
Rights in opposition to Federal action and seemed to regard segregation as
a positive benefit to Blacks. Tom
Clark wrote that, “we had
led the states on to think segregation is OK and we should let them work it
out.”Two of the most respected legal scholars on the Court, Felix
Frankfurter and Robert H. Jackson were personally
opposed to segregation but were skittish about “judicial activism.”

The makeup and temper of the Court changed dramatically as the case moved
forward when Vinton died and Earl Warren of California
was appointed by President Dwight Eisenhower as the new Chief
Justice. Warren made a majority
in favor of overturning the Kansas law.

Realizing the impact of the decision, the majority members spent a great
deal of time bringing around their dubious colleagues. The felt that anything less than a unanimous
decision would result in years of doubt and instability. One by one, they won over the doubters based
largely on Marshall’s arguments. In the
end, they achieved a unanimous decision that left no doubt where the Court
Stood.

Topeka schools, which had only been segregated on the elementary level
anyway, easily adapted without much in the way of opposition. But across the South, the alarm was high and
the angry voices of defiance heard loudly.

Virginia Senator Harry F. Byrd, Sr. organized the Massive
Resistance Movement across his state in which public school shut down
entirely rather than face integration.
In other states white fled the schools and established private
“academies.” With only Black and Whites
too poor to afford the private schools left in the public system, they were
starved of state and local tax funds.

In 1957 President Eisenhower had to mobilize the 101st Airborne
Division to enforce the desegregation of Little Rock,
Arkansas’s Central High School when Gov. Oval Faubus tried
to use the state National Guard to block Black students. As late as 1963 Alabama Governor
George Wallace “stood in the door” of the University of
Alabama to defend segregation.
He was moved aside by his own National Guard, which had been federalized
by Lyndon Johnson.

Northerners who smugly assumed that all the brouhaha was isolated in the
South were shocked when their own school systems were sued and desegregation
orders, including “forced bussing” was applied to them. Boston saw ugly resistance
through the ‘60’s into the early ‘70’s.

Today schools are generally desegregated, although recent decisions to
limit bussing have allowed more schools in racially isolated areas to become de
facto single race. Whites still shun
public schools across much of the South and flee majority Black urban school
districts in the North for White exurbs.

And a new generation of conservative judicial activists openly talks
about reverting to the Plessy v. Ferguson
standard. Yet even the most hide bound
conservative on the Supreme Court today would be hard pressed to overturn that
unanimous 1954 decision.